Weyerhaeuser Company

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IN THE MATIER OF WEYERHAEUSER COMPANY, ET AL.

Doket 9150. Interlocutory Order, June, 1982 ORDER DENYING RESPONDENTS' APPEAL OF THE ALJ S RULING OF JANUARY 6, 1982 On January 6, 1982, the ALJ granted complaint counsel's motion to exclude discovery in this case on any beneficial effects on either the community of North Bend, Oregon or the nation s balance of payments of the acquisition by Weyerhaeuser Company of Menasha Corporation s corrugated medium mil and adjacent mil site in North Bend. At the same time, the ALJ expressed a willngness to consider the admission of evidence on the effects of the acquisition on employment in North Bend, but only as it would pertain to the selection of a remedy in the case.

We agree with the ALJ that "( e Jvidence regarding the alleged beneficial effects of the merger on the community of North Bend, Oregon and on the nation s balance of payments is extraneous to the determination of whether this merger constitutes a violation of either Section 7 or Section 5." (Order of April 7, 1982, p. 9) The ALJ' scholarly analysis of the case law on this issue is exhaustive and his conclusions are accurate: if a merger may substantially lessen competition in the market in which it occurs, it is a violation of Section 7 of the Clayton Act, regardless of perceived social or political benefits it may create; the same rule should apply to the analysis of mergers under Section 5 of the Federal Trade Commission Act.

In determining whether a legal violation has occurred, antitrust analysis does not ordinarily permit consideration of factors other than those pertaining to competition in the relevant markets. U.S. v. Philadelphia Natl Bank 374 U.S. 321 , 371 (1963); Natl Soey of Professional Engineers v. United States 435 U.S. 679, 692 (1978). While other factors might well be considered by the Commission in deciding whether to challenge a merger, or how to formulate an appropriate remedy, Congress set injury to competition as the ultimate legal standard for review under Section 7. ' The number of conceivably relevant benefits to a merger that the Commission might consider, such as those suggested by respondent, is virtually limitless; and the weight that might be given to them is not readily apparent or even empirically ascertainable. The balancing of such Under certin cin;umatBce, the a.milysis in preliminary inunction procings may be broader. , FT u. Weyrhaeus€rco. 66 F.2d 1072 (D.C. Cir. 1981). 462 Interlocutory Order factors would, as complaint counsel argue, involve value judgments of the decisionmakers that would necessarily vary from case to case and the meaning of the law would become unacceptably vague. These same considerations militate against an interpretation of Section 5 that would similarly open up the area of inquiry in cases under the Federal Trade Commission act. The Commisssion sees no extraordinary circumstances that compel the interpretation of Section 5 as advocated by respondents.

The statements of various federal offcials referred to by respondents indicate the existence of a public debate on how federal prosecutors may consider international trade in selecting cases for enforcement, and how the antitrust laws might be amended to take into account the effects of mergers on international trade. However they do not evidence any dispute with regard to the meaning of current law.

For the aforesaid reasons, the appeal is hereby denied. Complaint 99 F.